This case presents the question whether claims by the FDIC as receiver (FDIC-R) of Columbian Bank & Trust (Columbian) against three ex-directors of Columbian are covered under a Directors and Officers Liability Insurance Policy (the policy). Defendant-Appellants Carl McCaffree, Jimmy D. Helvey, and Sam McCaffree (director-defendants) and the Federal Deposit Insurance Corporation (FDIC) appeal the district court's grant of summary judgment to BancInsure, Inc. (BancInsure). BancInsure, Inc. v. McCaffree, 3 F.Supp.3d 904, 910-16 (D. Kan. 2014). The district court held that claims by the FDIC-R were unambiguously excluded by the policy's " insured v. insured" exclusion and that BancInsure was not judicially estopped from denying coverage. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Background

BancInsure issued the policy to Columbian and its parent Columbian Financial Corporation (CFC) for the period of May 11, 2007 to May 11, 2010. App. 81.[1] Under the policy, BancInsure agreed to pay " Loss which the Insured Persons shall be legally obligated to pay." Id. at 74. " Insured Person" was defined as " all persons who were, now are or shall be the directors and officers [of CFC and Columbian]." Id. The policy provided an aggregate liability limit of $5,000,000 per year. Id. at 81.

The Insurer shall not be liable to make any payment for Loss in connection with any Claim made against the Insured Persons based upon, arising out of, relating to, in consequence of, or in any way involving . . . a Claim by, or on behalf of, or at the behest of, any other Insured Person, the Company, or any successor, trustee, assignee or receiver of the Company. . . .

Id. at 75-76 (emphasis added). The exclusion makes exception for " a shareholder's derivative action brought on behalf of the Company by one or more shareholders who are not Insured Persons and make a Claim without the cooperation or solicitation of any Insured Person or the Company." Id. at 76.

The regulatory exclusion, on the other hand, excluded coverage for " any action or proceeding brought by or on behalf of any federal or state regulatory or supervisory agency or deposit insurance organization," including " any type of legal action which any such Agency may bring as receiver." Id. However, the insured purchased a " regulatory exclusion endorsement" to the policy, which amended the policy " by the deletion of" the regulatory exclusion. Id. at 89. The endorsement further set a maximum aggregate liability cap of $5,000,000 for claims brought by " any federal or state regulatory or supervisory agency or deposit insurance organization," and stated that any such payments would reduce the liability limit of the policy as a whole. Id. Notably, the endorsement also stated: " Nothing herein contained shall be held to vary, waive or extend any of the terms, conditions, provisions, agreements or limitations of the above mentioned policy other than as above stated." Id. According to materials BancInsure provided to Columbian before it purchased the policy, under the regulatory endorsement, " [t]here is full coverage for actions by regulatory agencies." Id. at 418. BancInsure's own marketing materials described the endorsement as a " broadening feature." Id. at 427. Other BancInsure internal documents also characterized the FDIC-R's claims as " regulatory" in nature. Id. at 437, 438, 439, 442, 444.

On August 22, 2008, the Kansas State Bank Commissioner declared Columbian insolvent and appointed the FDIC as receiver. By operation of law, the FDIC-R succeeded to " all rights, titles, powers, and privileges of [Columbian], and of any stockholder, member, accountholder, depositor, officer, or director" of Columbian. 12 U.S.C. § 1821(d)(2)(A). In early September 2008, BancInsure received notice of potential claims the FDIC-R intended to file against the bank's officers and directors. Aplt. App. 456-57, 680-89.

In anticipation of such a suit, CFC and director-defendant Carl McCaffree brought suit against BancInsure seeking a declaratory judgment that the policy covered claims made after August 22, 2008--the date Columbian was declared insolvent--but before the expiration of the policy. As part of this litigation (the Columbian litigation), CFC issued a series of interrogatories to BancInsure regarding coverage of certain claims, including claims by deposit insurance organizations acting as receiver of Columbian. BancInsure indicated that such claims would be covered under the policy so long as BancInsure was given proper notice. App. 409, 411. These responses were purely hypothetical, as the FDIC-R had not yet brought any such claims and did not bring them until over two years later. Aplee. Supp. App. 38.

The district court ultimately held that the policy remained in effect until May 11, 2010, relying in part on its finding that the regulatory endorsement " provides coverage for actions brought by deposit insurance organizations as receivers during the policy year," which would be meaningless if the policy terminated upon appointment of a receiver. Columbian Fin. Corp. v. BancInsure, Inc., No. 08-2642-CM, 2009 WL 4508576 (D. Kan. Nov. 30, 2009). On appeal, we sua sponte determined that no case or controversy existed at the time of the district court's judgment and remanded with instructions to vacate the judgment for lack of subject matter jurisdiction. Columbian Fin. Corp. v. BancInsure, Inc.,650 F.3d 1372, 1385 (10th Cir. 2011).

BancInsure filed the instant action against the director-defendants in Kansas state court in August 2011, seeking a declaratory judgment that it owes no duty of coverage to the director-defendants for claims brought against them by the FDIC-R. The FDIC-R joined and removed the action to the federal district court in Kansas. At approximately the same time, the FDIC-R brought claims against several of Columbian's former directors and officers alleging negligence, gross negligence, and breach of fiduciary duty. The FDIC-R explicitly stated that it brought suit " in its capacity as Receiver of The Columbian Bank and Trust Company." Aplee. Supp. App. 38. BancInsure, the director-defendants, and the FDIC-R reached a settlement in February 2013 pursuant to which the director-defendants confessed judgment in favor of the FDIC-R for ...

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